Citation Nr: 0837185
Decision Date: 10/29/08 Archive Date: 11/05/08
DOCKET NO. 06-07 102 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Whether new and material evidence has been presented to
reopen a claim of entitlement to service connection for right
ear hearing loss.
2. Entitlement to service connection for left ear hearing
loss.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Robert J. Burriesci, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1967 to
February 1971.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 2005 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida.
The veteran was scheduled for a Video Conference Hearing,
however he failed to appear. Under the applicable
regulation, if an appellant fails to appear for a scheduled
hearing and a request for postponement has not been received
and granted, the case will be processed as though the request
for a hearing had been withdrawn. 38 C.F.R. § 20.702 (d)
(2007). Accordingly, this veteran's request for a hearing is
considered withdrawn.
The issue of whether new and material evidence has been
presented to reopen a claim of entitlement to service
connection for right ear hearing loss is addressed in the
REMAND portion of the decision below and is REMANDED to the
RO via the Appeals Management Center (AMC), in Washington,
DC.
FINDING OF FACT
The evidence of record does not establish a current left ear
hearing loss disorder.
CONCLUSION OF LAW
The veteran does not have a left ear hearing loss disability
for VA compensation purposes. 38 U.S.C.A. §§ 1110, 5107
(West 2002); 38 C.F.R. § 3.102, 3.303, 3.304, 3.307, 3.309,
3.385 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a),
3.159 and 3.326(a).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper notice from VA must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; and (3) that the claimant is expected to provide in
accordance with 38 C.F.R. § 3.159(b)(1). This notice must be
provided prior to an initial unfavorable decision on a claim
by the agency of original jurisdiction (AOJ). Mayfield v.
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v.
Principi, 18 Vet. App. 112 (2004).
Here, the VCAA duty to notify was satisfied by way of a
letter sent to the appellant in July 2004 that fully
addressed all notice elements and was sent prior to the
initial AOJ decision in this matter. The letter informed the
appellant of what evidence was required to substantiate the
claim and of the appellant's and VA's respective duties for
obtaining evidence.
In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United
States Court of Appeals for Veterans Claims (Court) held
that, upon receipt of an application for a service-connection
claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require
VA to review the information and the evidence presented with
the claim and to provide the claimant with notice of what
information and evidence not previously provided, if any,
will assist in substantiating, or is necessary to
substantiate, each of the five elements of the claim,
including notice of what is required to establish service
connection and that a disability rating and an effective date
for the award of benefits will be assigned if service
connection is awarded. In this case, although the notice
provided did not address either the rating criteria or
effective date provisions that are pertinent to the
appellant's claim, such error was harmless given that service
connection is being denied, and hence no rating or effective
date will be assigned with respect to this claimed condition.
VA has a duty to assist the veteran in the development of the
claim. This duty includes assisting the veteran in the
procurement of service medical records and pertinent
treatment records and providing an examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the appellant. See Bernard v. Brown, 4
Vet. App. 384 (1993). The RO has obtained the veteran's
service medical records. The appellant was afforded a VA
medical examination in July 2004. Significantly, neither the
appellant nor his representative has identified, and the
record does not otherwise indicate, any additional existing
evidence that is necessary for a fair adjudication of the
claim that has not been obtained. Hence, no further notice
or assistance to the appellant is required to fulfill VA's
duty to assist the appellant in the development of the claim.
Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384
(Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143
(2001); see also Quartuccio v. Principi, 16 Vet. App. 183
(2002).
II. Service Connection
Service connection may be granted for disease or injury
incurred in or aggravated by service. 38 U.S.C.A. § 1110.
If a chronic disorder such as an organic disease of the
nervous system is manifest to a compensable degree within one
year after separation from service, the disorder may be
presumed to have been incurred in service. See 38 U.S.C.A.
§§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.
Service connection may also be granted for any disease
diagnosed after discharge, when all of the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. 3.303(d).
Establishing service connection generally requires (1)
medical evidence of a current disability; (2) medical, or in
certain circumstances, lay evidence of in-service occurrence
or aggravation of a disease or injury; and (3) medical
evidence of a nexus between the claimed in-service disease or
injury and the present disability. Hickson v. West, 12 Vet.
App. 247, 253 (1999); 38 C.F.R. § 3.303(a).
However, the absence of documented hearing loss while in
service is not fatal to a claim for service connection.
Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). When a
veteran does not meet the regulatory requirements for a
disability at separation, he can still establish service
connection by submitting evidence that a current disability
is causally related to service. Hensley v. Brown, 5 Vet.
App. 155, 159-160 (1993).
Under 38 C.F.R. § 3.385, for the purposes of applying the
laws administered by VA, impaired hearing will be considered
to be a disability when the auditory threshold in any of the
frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels
or greater; or when the auditory thresholds for at least
three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz
are 26 decibels or greater; or when speech recognition scores
using the Maryland CNC Test are less than 94 percent.
In determining whether service connection is warranted for a
disability, VA is responsible for determining whether the
evidence supports the claim or is in relative equipoise, with
the veteran prevailing in either event, or whether a
preponderance of the evidence is against the claim, in which
case the claim is denied. 38 U.S.C.A. § 5107; Gilbert
v. Derwinski, 1 Vet. App. 49 (1990). When there is an
approximate balance of positive and negative evidence
regarding any issue material to the determination, the
benefit of the doubt is afforded the veteran.
The veteran seeks entitlement to service connection for left
ear hearing loss. The veteran filed his claim for left ear
hearing loss in June 2004. The Board notes that there are no
medical records regarding the veteran's hearing loss
associated with the claims folder subsequent to June 2004.
In July 2004 the veteran was afforded a VA Compensation and
Pension (C&P) audiological examination in conjunction with
his claim of entitlement to service connection for left ear
hearing loss. Upon examination, pure tone thresholds, in
decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
LEFT
25
15
20
15
10
Speech audiometry revealed speech recognition ability of 100
percent in the left ear.
The Board notes that these results do not reveal a current
left ear hearing loss disability pursuant to 38 C.F.R.
§ 3.385. Congress has specifically limited entitlement to
service-connected benefits to cases where there is a current
disability. In the absence of proof of a present disability,
there can be no valid claim. Brammer v. Derwinski, 3 Vet.
App. 223, 225 (1992). Indeed, in McClain v. Nicholson, 21
Vet. App. 319 (2007), the Court recently reiterated that the
veteran must have evidence of a current disability during the
appeal period. Accordingly, the entitlement to service
connection for left ear hearing loss must be denied.
In reaching the decision above the Board considered the
doctrine of reasonable doubt, however, as the preponderance
of the evidence is against entitlement to service connection
for left ear hearing loss, the doctrine is not for
application.
ORDER
Entitlement to service connection for left ear hearing loss
is denied.
REMAND
The veteran seeks to reopen a claim of entitlement to service
connection for right ear hearing loss. In written argument
dated in September 2008, the veteran's accredited
representative raised the issue of whether there was clear
and unmistakable error (CUE) in a June 1971 regional office
decision that denied entitlement to service connection for
right ear hearing loss.
In a June 1971 rating decision, the RO denied entitlement to
service connection for right ear hearing loss. The appellant
did not file an appeal of the June 1971 rating decision and
it became final based on the evidence then of record.
38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d),
20.302(a), 20.1103. However, the Board notes that an
unappealed rating decision is final in the absence of clear
and unmistakable error. 38 U.S.C.A. § 5109A; 38 C.F.R. §
3.105(a). As such, the veteran's challenge to the June 1971
rating decision is inextricably intertwined with his
application to reopen a claim of service connection for right
ear hearing loss because finality presumes the absence of
clear and unmistakable error, i.e., if a prior adjudication
contains clear and unmistakable error, it did not become
final. Id; see also Harris v. Derwinski, 1 Vet. App. 180,
183 (1991). Thus, the Board must defer consideration of the
veteran's application to reopen his claim of service
connection for right ear hearing loss until the RO
adjudicates, in the first instance, his clear and
unmistakable error claim. See Huston v. Principi, 18 Vet.
App. 395, 402-03 (2004).
Accordingly, the case is REMANDED for the following action:
1. The AMC must adjudicate the issue of
clear and unmistakable error in the RO's
June 1971 rating decision that denied
service connection for right ear hearing
loss.
2. Thereafter, readjudicate the
veteran's claim. If the benefit sought
on appeal is not granted in full, the AMC
should issue the veteran and his
representative a supplemental statement
of the case and provide an opportunity to
respond. The case should then be
returned to the Board.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
STEVEN D. REISS
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs